DAVIS et al. vs. YOU, Adm'r

DAVIS et al. vs. YOU, Adm’r. [motion to dismiss appeal.] 1. Nonresident plaintiff; what does not relieve from giving security for costs. — A non-resident plaintiff is not excused from giving security for costs, under § 2802 of the Revised Code, when he commences suit in this State, by summons and complaint, although he brings such suit as an administrator appointed in this State. 2. Appeal; what not such a final judgment as toill authorize. — The judgment of a court overruling a motion to dismiss a suit, so commenced by such administrator, without giving security for costs, is not such a final judgment as will authorize an appeal to this court. This was a motion by appellee to dismiss the appeal in this case, which was brought up from the probate court of Wilcox, on the ground that there has been no final judgment in the court below. The other facts of the case will be found in the opinion of the court. J. C. Danner, for appellant. Cochran & Dawson, contra. [MAJORITY — Per Guriam.] Per Guriam. Motion was made in the court below by appellants to dismiss this suit, because the appellee, administrator, &c., plaintiff in that court, and a non-resident, had not given security for the costs before the issue of the summons, as required by § 2802 of the Revised Code. The non-residence of the appellee was proved, but he resisted the motion, and claimed that he was not bound to give security for the costs, “ because he brought the suit as administrator of Bradley You, appointed by Wilcox probate court.” The court overruled the motion, and the appellants excepted, and their bill of exceptions was signed and sealed and made a part of the record, and they have appealed to this court. Appellee moves to dismiss the appeal. This motion must prevail. The judgment of the court, overruling the motion to dismiss the suit, because security for costs had not been given previous to the issue of the summons, is not such a final judgment within the meaning of § 3485 of the Revised Code, as will sustain an appeal to this court. The section 2802 of the Code, above referred to, makes no exception in favor of such a plaintiff as the appellee, and the courts have no right to make any. Let the appeal be dismissed at the costs of the appellants.